Opinion
D075250
03-16-2020
THE PEOPLE, Plaintiff and Respondent, v. PETER LOUIS OLMOS, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE381196) APPEAL from a judgment of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Peter Louis Olmos of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); counts 1, 3), assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2), battery of a cohabitant (§ 243, subd. (e)(1); count 4), attempt to dissuade a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 5), and violation of a protective order (§ 166, subd. (c)(1); counts 6, 7, and 8). As to counts 1 and 2, it found true allegations that the offenses involved domestic violence. (§ 12022.7, subd. (e).)
Undesignated statutory references are to the Penal Code.
In bifurcated proceedings, Olmos admitted he suffered one prior prison conviction (§ 667.5, subd. (a)), one prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, 668). The court sentenced Olmos to seven years in prison and, without objection, imposed certain fees, fines, and assessments.
Olmos contends: (1) defense counsel's concessions that he was guilty on counts 6, 7, and 8 violated his state and federal constitutional rights; and (2) this court should strike the fees, fines, and assessments because, as in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court made no finding regarding his ability to pay. We affirm.
FACTUAL BACKGROUND
We set forth the facts as to counts 6, 7, and 8, as those are the only convictions Olmos challenges on appeal. In May 2018, the trial court issued a protective order prohibiting Olmos from having any "personal, electronic, telephonic, or written contact" with his cohabitant Y.A. Nevertheless, on three days in May 2018, Olmos telephoned Y.A. from jail. Y.A. testified that in the calls Olmos acknowledged the protective order, discussed this criminal case, and asked her to drop the charges against him. A detective listened to the recordings of the telephone calls and testified in accord with Y.A.'s testimony. A copy of the protective order was shown to the jury.
In closing argument, defense counsel conceded: "Mr. Olmos violated the criminal protective order, [c]harges 6, 7[,] and 8. He made phone calls to [Y.A.], collect calls, which she accepted. He visited her at the jail, visits that she initiated. She doesn't call. I mean, if she doesn't accept those calls, there is [sic] no calls. If she doesn't come to the jail, there's [sic] no visits, but she did and he violated the criminal protective order." Defense counsel continued: "So when you look at, for example, the charges, [c]ounts 6, 7[,] and 8, you can have an abiding conviction that Mr. Olmos violated the criminal protective order because I'm telling you he did and you know he did, so this week, next week, next month, next year you can have an abiding conviction that he is guilty of violating that criminal protective order."
DISCUSSION
I.
Olmos contends this court should reverse his count 6, 7, and 8 convictions because "the defense attorney conceded appellant's guilt . . . without a waiver by appellant of his federal and state constitutional rights."
The Sixth Amendment of the United States Constitution "guarantees the rights of criminal defendants," including the right to assistance of counsel, an impartial jury, and to confront witnesses against them. (U.S. Const., 6th Amend.) Defense counsel controls trial tactics. (Gonzalez v. United States (2008) 553 U.S. 242, 249.) However, "when a client makes it plain that the objective of 'his defence' is to maintain innocence of the charged criminal acts and pursue an acquittal, his lawyer must abide by that objective and may not override it by conceding guilt." (McCoy v. Louisiana (2018) ___ U.S. ___, 138 S.Ct. 1500, 1504.) When a criminal defendant enters a guilty plea, the trial court must ensure the defendant knowingly and voluntarily waives his constitutional rights in a "Boykin-Tahl waiver." (People v. Farwell (2018) 5 Cal.5th 295, 300; Boykin v. Alabama (1969) 395 U.S. 238, 242; In re Tahl (1969) 1 Cal.3d 122, 132-133.) Here, the trial court did not obtain a Boykin-Tahl waiver and no evidence shows Olmos consented to concede guilt.
The United States Supreme Court has held that a concession is not a guilty plea. (Florida v. Nixon (2004) 543 U.S. 175, 188-189.) In Florida v. Nixon, in light of overwhelming evidence, defense counsel believed the best strategy for his client to avoid the death penalty was to concede defendant's guilt, which counsel did in the opening statement and closing argument. (Id. at pp. 181-183.) The jury found the defendant guilty on all counts. (Id. at p. 183.) The defendant "never verbally approved or protested [defense counsel's] proposed strategy." (Id. at p. 181.) The United States Supreme Court held the concessions were not the "functional equivalent of a guilty plea" because the prosecution was required to present "competent, admissible evidence establishing the essential elements of the crimes with which [the defendant] was charged." (Id. at p. 188; accord, People v. Cain (1995) 10 Cal.4th 1, 30.)
Unless the defendant expressly disagrees, defense counsel may concede guilt during closing argument. (See People v. Cain, supra, 10 Cal.4th at p. 30.) In People v. Cain, defense counsel conceded the defendant was "guilty of burglary and multiple felony murder." (Id. at pp. 29-30.) The defendant did not oppose the concession. (Id. at p. 30.) The California Supreme Court held that "[i]t is not the trial court's duty to inquire whether the defendant agrees with his counsel's decision to make a concession, at least where, as here, there is no explicit indication the defendant disagrees with his attorney's tactical approach to presenting the defense." (Ibid.)
Here, defense counsel's concessions were not tantamount to guilty pleas. Rather, like in Florida v. Nixon, supra, 543 U.S. 175, where counsel made a tactical decision to avoid a harsher penalty for his client, counsel could reasonably have believed that conceding Olmos's guilt on counts 6, 7, and 8 was the best strategy to avoid convictions on the remaining counts. That is, defense counsel most likely emphasized the "abiding conviction that Mr. Olmos violated the criminal protective order" to contrast the lack of abiding conviction the jury should have had as to counts 1 through 5.
Moreover, under People v. Cain, supra, 10 Cal.4th 1, the record does not indicate Olmos disagreed with defense counsel's strategic concessions of guilt, thus a Boykin-Tahl waiver was not required. Olmos contends that we should not follow People v. Cain, but this court is bound by that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456; accord, People v. Lopez (2019) 31 Cal.App.5th 55, 63.) McCoy v. Louisiana, supra, ___ U.S. ___, 138 S.Ct. 1500 is distinguishable because the defendant there "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt" before and during trial. (Id. at pp. 1505-1506.) Defense counsel nevertheless conceded the defendant's guilt during opening statement and closing argument. (Id. at pp. 1506-1507.) The United States Supreme Court held counsel's concessions "over the client's express objection" constituted structural error. (Id. at pp. 1511-1512.)
Olmos without elaboration asserts that "[a] defendant is deprived of effective assistance of counsel when his counsel concedes his guilt over the defendant's objection." But the California Supreme Court has stated, " '[t]o the extent defendant is arguing that it is necessarily incompetence for an attorney to concede his or her client's guilt . . . , the law is otherwise.' " (People v. Cain, supra, 10 Cal.4th at pp. 30-31.)
Furthermore, even if defense counsel erred in making the concessions, any error is harmless under either prejudice standard. (People v. Watson (1956) 46 Cal.2d 818, 836 [inquiring if it is "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"]; Chapman v. California (1967) 386 U.S. 18; accord, People v. Canizales (2019) 7 Cal.5th 591, 615 [the Chapman standard inquires " 'whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error' "].) This case turned on whether Olmos willfully violated the protective order, which was abundantly documented in the record. Specifically, the jury saw the protective order and evaluated the credibility of two witnesses who confirmed Olmos made the phone calls. Therefore, it is clear beyond a reasonable doubt that even absent defense counsel's concessions, the jury would not have reached a different verdict.
Under section 166, subdivision (c)(1), the prosecution was required to prove: (1) the court issued an order; (2) Olmos knew of it; (3) he had the ability to comply; and (4) he willfully disobeyed the order. (People v. Greenfield (1982) 134 Cal.App.3d Supp. 1, 4; Warner v. Superior Court (1954) 126 Cal.App.2d 821, 824.)
II.
The trial court imposed a $5,000 restitution fine (Pen. Code, §§ 1202.4, subd. (b), 2085.5); a $5,000 parole revocation fine (Pen. Code, § 1202.45), which was stayed; a $320 court operations assessment (Pen. Code, § 1465.8); a $240 court facilities assessment (Gov. Code, § 70373); and a $154 criminal justice administration fee (Gov. Code, § 29550).
We point out the reference to the $54 "other fines" in appellant's opening brief is likely a typographical error regarding the $154 criminal justice administration fee the trial court imposed. Olmos correctly states he was ordered to pay a total of $5,714 in fees, fines, and assessments, which includes the $154.
Except for reducing the restitution and parole revocation fines from $10,000, the court adopted the fees, fines, and assessments recommended by the probation officer.
Olmos for the first time on appeal challenges the court's imposition of the fees, fines, and assessments based on his inability to pay. He relies on Dueñas, supra, 30 Cal.App.5th 1157, in which the defendant at sentencing objected on due process grounds to the trial court's imposition of a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (Pen. Code, § 1465.8), and a statutory minimum $150 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)). (Dueñas, supra, 30 Cal.App.5th at p. 1162.) The defendant in Dueñas was a probationer who suffered from cerebral palsy, was indigent, homeless, and the mother of young children. The trial court agreed to, and held, a separate inability to pay hearing as defendant requested. (Id. at pp. 1162-1163.) At that hearing, the court considered the defendant's "uncontested declaration concerning her financial circumstances, determined that she lacked the ability to pay the previously-ordered attorney fees, and waived them on the basis of her indigence. [It] concluded that the $30 court facilities assessment under Government Code section 70373 and $40 court operations assessment under Penal Code section 1465.8 were both mandatory regardless of [her] inability to pay them" (Dueñas, supra, 30 Cal.App.5th at p. 1163), and that she failed to show " 'compelling and extraordinary reasons' required by statute (Pen. Code, § 1202.4, subd. (c)) to justify waiving [the $150] fine. The court rejected Dueñas's constitutional arguments that due process and equal protection required the court to consider her ability to pay these fines and assessments . . . ." (Dueñas, supra, 30 Cal.App.5th at p. 1163.)
In reversing, the Dueñas court concluded that "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes court facilities and court operations assessments under Penal Code section 1465.8 and Government Code section 70373" (Dueñas, supra, 30 Cal.App.5th at p. 1164); and that, "although Penal Code section 1202.4 bars consideration of a defendant's ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine." (Ibid.)
The validity of Dueñas has been addressed in several recent cases. In People v. Castellano (2019) 33 Cal.App.5th 485, the same division of the Second Appellate District that decided Dueñas applied its holding to a defendant who had been assessed various court fees and the statutory minimum restitution fine. (Castellano, supra, 33 Cal.App.5th at pp. 488-489.) In doing so, the court explained that a defendant must "in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court." (Id. at p. 490.) It held, however, that the defendant's failure to object to the fine and fees before Dueñas, supra, 30 Cal.App.5th 1157 was decided was not a forfeiture of the issue because Dueñas was "a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial." (Castellano, supra, 33 Cal.App.5th at p. 489.) More recently in People v. Johnson (2019) 35 Cal.App.5th 134, the court agreed with Castellano on the forfeiture issue, commenting, "we are hard-pressed to say [the Dueñas] holding was predictable and should have been anticipated." (Johnson, supra, 35 Cal.App.5th at p. 138, fn. omitted.)
Because we resolve this issue on forfeiture grounds, we express no opinion on whether Dueñas was correctly decided.
In People v. Gutierrez (2019) 35 Cal.App.5th 1027, this court concluded the appellant's challenge to the fees and fines was forfeited in part because "even before Dueñas[, supra, 30 Cal.App.5th 1157] a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge." (Gutierrez, supra, 35 Cal.App.5th at p. 1033.) Applying that reasoning, we conclude that because Olmos's fines exceeded the statutory minimum, he had every incentive to object to them. We also stated in Gutierrez, "As a practical matter, if Gutierrez chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees." (Ibid.) The same observation applies here. As Olmos did not object below to the $5,000 restitution fine or the $10,000 fine recommended by probation on inability to pay grounds, he would not complain on similar grounds to the much lower amount of fines and fees imposed. We conclude Olmos forfeited his challenge to the fees, fines, and assessments.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. IRION, J.